The new right of withdrawal 2011 – amendments to the withdrawal information

Following the comprehensive amendment of the right of withdrawal in June 2010, on 04.08.2011 the "Act on the adjustment of provisions concerning the return value of distance contracts and linked contracts" adopted by the German Bundestag on 27.07.2011 has now entered into force, which once again necessitates an adjustment for merchants on eBay, Amazon and other platforms as well as conventional online shops. Due to [...]Gesetz zur Anpassung der Vorschriften über den Wertersatz von Fernabsatzverträgen und über verbundene Verträge has entered into force, which once again necessitates an adjustment for merchants on eBay, Amazon and other platforms as well as conventional online shops. Due to the transition period until 04.11.2011, there is no acute need for action. However, from 05.11.2011 onwards, the old withdrawal information can no longer be used without risking a cease-and-desist letter, so an early transition should be considered.

The legal amendment essentially affects provisions concerning the return value. The occasion for the legal amendment was the decision of the Court of Justice of the European Union from 03.09.2009, according to which the German return value provisions were partially declared contrary to European law, which necessitated an adjustment of the corresponding provisions. The core of the decision was that a consumer who exercises their right to withdraw from a distance contract may not be obliged by the entrepreneur to generally pay return value compensation. Such an obligation – according to the EuGH – is incompatible with the Distance Selling Directive.

The adjusted provisions concerning the return value for distance contracts are now to be found in the new § 312e BGB. According to this, the consumer must pay return value compensation for use only,

• insofar as they have used the goods in a manner that goes beyond the examination of the properties and functionality, and
• if they have previously been informed of this legal consequence and informed of their right of withdrawal or return, or have become aware of both in some other way.

The claim for return value compensation due to deterioration of the thing pursuant to § 357 Abs. 3 BGB remains in principle, but in modified form. The return value compensation can henceforth only be demanded,

• insofar as the deterioration is attributable to handling of the thing that goes beyond the examination of the properties and functionality, and
• the consumer has been informed in text form of this legal consequence no later than at the time of conclusion of the contract.

The obligations of the entrepreneur in theelectronic commerce have been incorporated unchanged into the new § 312g BGB (formerly § 312e BGB).

The amendments necessitate an adjustment in two points:

• On the one hand, due to the restructuring of the provisions in the BGB, the reference chain in the withdrawal information no longer matches. Here the reference "§ 312e BGB" must be replaced by "§ 312g BGB".
• The withdrawal consequences now regularly contain (goods sales in distance selling) the following notice as a result of the amendment:"For the deterioration of the thing and for benefits derived, you must pay return value compensation only insofar as the benefits or the deterioration is attributable to handling of the thing that goes beyond the examination of the properties and functionality. By 'examination of the properties and functionality' is meant the testing and trying out of the respective goods, as is possible and customary in a conventional retail shop."

Overall, this means that the sample withdrawal and return information in the version of 11.06.2010 have been replaced by the current versions and the withdrawal information used since then must be reformulated accordingly. While there is initially no risk of a cease-and-desist letter as long as the sample templates in the old version are used properly, since a transition period runs until 04.11.2011, it is nevertheless recommended to use the new templates early, particularlyin online shops, since after expiry of the privilege periodcease-and-desist letters threaten.